Pinochet decision: a step in the right direction

December 01, 1998|By WILLIAM PFAFF

PARIS -- The great significance of the recent decision concerning former Chilean dictator Augusto Pinochet is that the majority of Britain's law lords affirmed universal jurisdiction over crimes against humanity. They implicitly held that any national justice system is competent to prosecute such crimes.

Since the 17th century and Thomas Hobbes, international law was held not to be true law because there was no one to enforce it. It was said to be merely a set of agreements among a certain number of nations, which might not be respected.

This inspired many worthy efforts, without real effect or solid intellectual base, to promote the idea of a world government to enforce world law (and world peace). Seductive as the idea was to many people (while frightening others, who feared that world government would prove a tyranny), these efforts predictably failed.

They rested on a facile but false analogy between the world community, with all of its diversity, conflicting perceptions and interests, differing levels of civilization and political culture, and the national communities in which modern democracy and modern systems of domestic law have developed.

Rule of law

These national communities shared an identity, a common culture and history and belief in a shared future. These qualities were essential to the development of national political cultures able to internalize values of individual equity and worth, hence of rights and the rule of law. (This is why multiculturalism is a bad idea: It attacks the sense of kinship and mutual obligation that sustains a nation, and through the nation, a political civilization.)

The U.N. exercises authority only as the agent of the nations who are its members. The most powerful of those members reject its authority when they wish to do so (hence the Security Council veto). The U.N.'s accomplishments are many, but it is not a sovereignty, an autonomous law giver, nor -- in the absence of great-power consensus -- a law enforcer.

Britain's law lords have now said that crimes against humanity do not have to be defined by a world authority. They are spontaneously recognizable. As the Lord Nicholls wrote in his decision, "certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else."

Even if crimes against humanity are self-evident, and jurisdiction can be exercised by any nation's courts, these prosecutions must nonetheless be expected to remain exceptional. Despots in office are generally considered beyond legal prosecution because in the exercise of office they partake of the sovereignty of the state.

This was the conclusion drawn by Britain's High Court on Oct. 28, when it said that General Pinochet could not be arrested because he is a former head of state. Medieval legal doctrine traditionally said there were two kings, the king in his own person, a sinner subject to God's judgment and human criticism, and the king as king, held to be the agent in this world of divine right, and therefore beyond human judgment.

The immunity of heads of state came under attack by the Allies in the world wars, when they demanded in 1918 that the Kaiser Wilhelm II, and then in 1944-45 that Adolf Hitler, Benito Mussolini, and General Hideki Tojo, Japan's prime minister, be tried. The Allies were thwarted, but established the Nuremberg Tribunal, which held that individuals responsible for the crimes of governments can be punished.

Since then, the Hague and Nairobi war crimes tribunals have been created, and a project for a permanent international court for crimes against humanity was approved by 120 nations meeting in Rome last summer. The law lords made their decision in the Pinochet case in the context of this continuing development of international precedent.

Different outcomes

The outcome of all this will be mixed. Some ex-tyrants may be prosecuted and some not, just as some political terrorists end up in prison, such as Carlos the Jackal, and some end up as heads of nations, such as Yasser Arafat, Menachem Begin and Eamon DeValera.

There are worse men than the benighted and reactionary Pinochet who enjoy tranquil retirements today. His indictment by a Spanish magistrate, Baltasar Garzon, is obviously, for many Spaniards, symbolic of the trial of General Francisco Franco, which never happened.

Some think the Pinochet case will inspire frivolous or ideological indictments, which is possible. That fear caused the American military to veto U.S. signature of the humanitarian crimes tribunal treaty approved last July in Rome -- the only democracy to do so.

However, international indictments and extraditions will remain a complex affair. Those in the Pentagon who fear frivolous prosecutions would be better off supporting that tribunal, which incorporates institutional barriers against prosecutions without merit -- including a provision which says that such prosecution is permissible only if the accused's own country refuses to try the case.

International law is headed in a new direction, and a desirable one. The virtual immunity that criminal heads of state have enjoyed until now has been an outrage to justice. The remedies being established bring obvious problems. They nonetheless represent progress in the interminable effort to civilize man.